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Thursday, January 12, 2012

Assessing a “Funded Right” to Education as Constitutional

According to the Texas constitution, the government must provide funds for a “general diffusion of knowledge.” This is a worthy purpose in a representative democracy, as an educated electorate is generally presumed better able to self-govern by voting for candidates and even on policy-oriented referendums. Thomas Jefferson and John Adams had their differences to be sure, but they both believed that an educated and virtuous citizenry is vital to a republic. Accordingly, the “Texas constitution imposes an affirmative obligation to provide adequate financial resources for education, whatever the economic cycle,” according to Mark Trachtenberg, an attorney who represents more than seventy school districts that sued the government of Texas. Altogether, four funding suits were pending in Texas as of January 2012. Five hundred districts, which together educate more than half of all public school students in Texas, were involved in those suits at the time. In 2010, the Texas legislature had cut more than $5 billion from school district budgets. In the wake of the cuts, the districts claimed that they lacked the resources to provide the level of education required by the constitution. One major question is whether the courts are the proper venue for this matter.

Critics of the lawsuits say it is the prerogative of legislatures to make the call on school funding. From a democratic standpoint, the representatives of the people should decide, rather than a few unelected judges. “There are more-appropriate venues for a vigorous and informed public debate about the state’s spending priorities,” according to Colorado’s head of state, John Hickenlooper. Meanwhile, Washington’s Supreme Court ruled that the Washington legislature must come up with a plan for additional educational spending. The ruling can be interpreted as an indictment ultimately against Washington citizens, as they had elected the legislators who had insufficiently (in the justices’ view) funded general education. It is ironic that unelected justices would find the people as having been insufficient in seeing to it that the republic of Washington would remain viable with respect to “government of the people” and “government by the people.”

Constitutionally speaking, whether basic law (i.e., a constitution) should contain substantive funding requirements is an interesting question. If so, then the courts have every right to intervene, as part of their role is to interpret constitutions. The underlying question may be whether substantive rights, such as the right of free speech, should be expanded to what we might call “funded rights,” such as the right a funded education. In a “funded right,” the funding itself is moved up from being a matter of policy to being a function of government. Other “funded rights” could be “access to funded health-care,” food-stamps and guaranteed housing. Such “funded rights” can be justified as basic in terms of human rights. Furthermore, the “funded right” to a job, which may be implied in the Full Employment Congressional Act of 1946, could be written into a constitution.

In short, “funding rights” can be oriented to a “floor” of sorts below which neither a republic nor a human being can survive. Taking such rights out of the policy arena by elevating them to basic law constitutionally would protect the vulnerable from the momentary selfishness of the “haves”—particularly, the “one percent.” That is to say, a social contract that is not a mere reflection of the wealthy can perhaps exist and be protected even when under moneyed political pressure. After all, the courts are supposed to protect the rights of the individual (and minority) against the tyranny of the majority (Madison). Whereas it is clear that humans need medical care, food and shelter to survive, perhaps part of the dispute in Texas is whether a republic really needs an educated citizenry to be viable—or is it just a cherry on the sundae? Relative to medicine, food and shelter, a general education is certainly not necessary, even if it is important. The question is perhaps whether constitutional protections extend to the latter—or even whether they include that which is necessary but not necessarily in the foreseeable interests of the “haves.”